Curtis Rockaird v. BNSF Railway Company

These appeals follow a civil jury trial. The jury found

that BNSF Railway Company violated the anti-retaliation

provision of the Federal Railroad Safety Act (“FRSA”) when

BNSF fired Curtis Rookaird for, in part, refusing to stop

performing an air-brake test on a 42-car train that he was

tasked with moving. Rookaird was awarded over $1.2

million in damages. BNSF appeals issues related to its

liability and damages; Rookaird cross-appeals issues related

to damages. For the reasons below, we affirm in part,

reverse in part, vacate the district court’s judgment, and

remand.

I. Background

A. Factual Background

BNSF operates a freight railroad in the western United

States and Canada. It serves customers across North

America, including northwest Washington known as Cherry

Point. The Cherry Point rail line connects to a main line that

runs from Bellingham to BNSF’s Swift Depot. BNSF

employs three-person “switcher” crews that serve BNSF

customers in Cherry Point by switching or reassigning

freight cars as part of delivering or picking up freight. In

early 2010, BNSF relocated its switcher crews from

Bellingham to the Swift Depot to reduce travel time to

Cherry Point, thereby reducing the overtime BNSF had to

pay those crews.

Curtis Rookaird was a conductor for – and thus in charge

of – one such crew. On February 23, 2010, Rookaird and his

crew worked a scheduled eight-hour shift beginning at

ROOKAIRD V. BNSF RAILWAY CO. 5

2:30 p.m. The “Trainmaster,” Dan Fortt, tasked Rookaird’s

crew with moving a 42-car train in Custer from the main line

to a different set of tracks before traveling to Cherry Point to

service BNSF’s customers.

Three hours into their shift, the crew arrived in Custer

after securing two engines in Ferndale (south of Custer).

Before moving the 42-car train, Rookaird’s crew performed

a 20- to 45-minute air-brake test on the train. During the test,

Fortt said on the radio to Rookaird and his crew, “I’m not

from around here, and I don’t know how you guys do

anything. But from where I’m from, we don’t have to air

test the cars.” Fortt did not tell the crew to stop. Rookaird’s

crew replied that they were going to finish the test. They

did, and then began moving the 42-car train.

About ninety minutes later, around five hours into their

shift, Rookaird’s crew had not yet completed moving the 42-

car train in Custer and had not yet serviced any Cherry Point

customers. Fortt and Stuart Gordon, another one of

Rookaird’s supervisors on duty that day, were frustrated

with what they believed to be a slow pace of work by

Rookaird’s crew. Fortt ordered Rookaird’s crew to stop

work and report back to the Swift Depot because another

crew was going to relieve them. Gordon believed that

Rookaird was intentionally slowing down work as a way to

get back at BNSF for reducing overtime hours.

Back at the Swift Depot, around 7:50 p.m., Gordon

questioned Rookaird about the air-brake test. Gordon told

Rookaird that he thought the test was unnecessary. Gordon

also asked Rookaird if he would be happy with the level of

service he received that day if he were a BNSF customer;

Rookaird told him no. Gordon then told Rookaird and his

crew that they were done for the day and to clock out and go

home. Rookaird printed his timesheet at 8:02 p.m., reporting

6 ROOKAIRD V. BNSF RAILWAY CO.

his off-duty time at 8:30 p.m. Around 8:15 p.m., Gordon

again told Rookaird to go home; he did, but he did not sign

his timesheet before leaving.

BNSF initiated an investigation into Rookaird to

determine whether any disciplinary action was warranted.

On March 19, BNSF fired Rookaird for his “failure to work

efficiently . . . on February 23,” his “dishonesty when

reporting [his] off duty time,” his failure to sign his

timesheet, and his “failure to comply with instructions when

instructed to leave the property . . . on February 23.”

B. The FRSA

The FRSA prohibits railroad operators from retaliating

against employees who refuse in good faith to violate

railroad safety laws or regulations. The FRSA provides:

A railroad carrier . . . may not discharge,

demote, suspend, reprimand, or in any other

way discriminate against an employee if such

discrimination is due, in whole or in part, to

the employee’s lawful, good faith . . .

refus[al] to violate or assist in the violation of

any Federal law, rule, or regulation relating

to railroad safety . . . .

49 U.S.C. § 20109(a), (a)(2).

An employee who alleges an FRSA anti-retaliation

violation may file a complaint with the Secretary of Labor.

Id. § 20109(d)(1). If the Secretary fails to issue a final

decision within 210 days, the employee may bring a civil

action in federal court. Id. § 20109(d)(3).

ROOKAIRD V. BNSF RAILWAY CO. 7

An FRSA retaliation complaint proceeds in two stages,

each of which is governed by a burden-shifting framework.

First, the complainant must “make[ ] a prima facie showing

that” protected activity “was a contributing factor in the

unfavorable personnel action.” 49 U.S.C.

§ 42121(b)(2)(B)(i). If the complainant makes a prima facie

showing, the burden shifts to the employer to prove “by clear

and convincing evidence, that the employer would have

taken the same unfavorable personnel action in the absence

of” the protected activity. Id. § 42121(b)(2)(B)(ii). Then, to

substantively establish an FRSA violation, the complainant

must prove by a preponderance of the evidence “that any

[protected activity] was a contributing factor in the

unfavorable personnel action alleged in the complaint.”

49 U.S.C. § 42121(b)(2)(B)(iii); see 29 C.F.R.

§ 1982.109(a). If the complainant proves the substantive

case, then the burden again shifts to the employer to prove

“by clear and convincing evidence that the employer would

have taken the same unfavorable personnel action in the

absence of [the protected activity].” 49 U.S.C.

§ 42121(b)(2)(B)(iv).

C. District Court Proceedings

Rookaird brought this action pursuant to 49 U.S.C.

§ 20109(d)(3). Rookaird alleged that BNSF violated the

anti-retaliation provision of the FRSA because BNSF fired

him for, in part, refusing to stop performing the air-brake

test. BNSF insisted that it did not fire him for that reason.

BNSF also asserted its affirmative defense under 49 U.S.C.

§ 42121(b)(2)(B)(iv) that it would have fired Rookaird even

if he had not performed the air-brake test.

The district court held that Rookaird was required to

prove four elements by a preponderance of the evidence:

“that (1) he engaged in a protected activity; (2) the employer

8 ROOKAIRD V. BNSF RAILWAY CO.

knew he engaged in the allegedly protected activity; (3) he

suffered an unfavorable personnel action; and (4) the

protected activity was a contributing factor in the

unfavorable personnel action.” The district court granted

Rookaird summary judgment on all but the first element of

his substantive case. The district court held that BNSF knew

that Rookaird performed the air-brake test, that his

termination was an adverse action, and that the air-brake test

was a contributing factor in his firing. With respect to the

contributing-factor element, the district court found that the

“cited failure to work efficiently cannot be unwound from

Rookaird’s decision” to perform the air-brake test.

The issues for the jury were whether Rookaird’s refusal

to stop the air-brake test was FRSA-protected activity,

BNSF’s affirmative defense, and damages. Before closing

arguments, the district court concluded that – although

Rookaird’s crew was not legally required to perform the airbrake

test under the circumstances, describing the issue as a

“close call” – a reasonable jury could find that Rookaird

engaged in protected activity because there was evidence

that Rookaird “had a subjectively and objectively reasonable

good faith belief that the air-brake test was required.”1 The

jury returned a verdict for Rookaird, finding that Rookaird’s

refusal was FRSA-protected activity. The Court awarded

Rookaird $1.2 million in damages and entered final

judgment.

These appeals followed.

1 The district court treated the propriety of the air-brake test as an

issue for the court to resolve, not the jury. We express no view either on

the air-brake test’s propriety or on whether that question should have

been decided by the jury rather than the court.

ROOKAIRD V. BNSF RAILWAY CO. 9

II. Discussion

A. Protected Activity

BNSF appeals the district court’s denial of BNSF’s

motion for judgment as a matter of law that Rookaird did not

engage in protected activity. We review de novo a district

court’s denial of a motion for judgment as a matter of law.

First Nat’l Mortg. Co. v. Fed. Realty Inv. Tr., 631 F.3d 1058,

1067 (9th Cir. 2011). Judgment as a matter of law is proper

only when “the evidence permits only one reasonable

conclusion, and that conclusion is contrary to the jury’s

verdict.” Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir.

2006). “The verdict will be upheld if it is supported by

substantial evidence, ‘even if it is also possible to draw a

contrary conclusion.’” First Nat’l Mortg. Co., 631 F.3d at

1067 (quoting Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir.

2002)).

BNSF argues that Rookaird did not engage in protected

activity as a matter of law for two reasons. First, BNSF

insists there was insufficient evidence from which the jury

could have found that Rookaird “refused” to violate a

railroad safety rule or regulation because he was never

explicitly ordered to stop the air-brake test. Second, BNSF

argues that 49 U.S.C. § 20109(a)(2) protects only refusals to

engage in conduct that would be an actual violation of

railroad rules or regulations, and thus that Rookaird did not

engage in protected activity because the air-brake test was

not legally required.

We hold that the district court did not err in denying

BNSF’s motion for judgment as a matter of law with respect

to whether Rookaird engaged in FRSA-protected activity.

10 ROOKAIRD V. BNSF RAILWAY CO.

1. Refusal

Under the FRSA, protected activity includes an

“employee’s lawful, good faith . . . refus[al] to violate or

assist in the violation of any Federal law, rule, or regulation

relating to railroad safety or security.” 49 U.S.C.

§ 20109(a), (a)(2). By the FRSA’s plain terms, an employee

must “refuse” to violate a rule or regulation, necessarily

requiring some action by the employer (e.g., an order to

perform or not perform, or to start or stop, a particular action)

which prompts the employee’s “refusal.” See Refuse,

Merriam-Webster’s Collegiate Dictionary (10th ed. 2001)

(“to show or express unwillingness to do or comply with”);

cf. Quinn v. United States, 349 U.S. 155, 165–66 (1955)

(holding that, to sustain a conviction under 2 U.S.C. § 192

for refusing to answer questions before Congress, a witness

must be “clearly apprised that the committee demands his

answer notwithstanding his objections”). Thus, an employee

who simply performs basic job duties has not “refused” to

violate any rule or regulation unless those job duties are

covered by a rule or regulation. See Sievers v. Alaska

Airlines, Inc., ARB No. 05-109, 2008 WL 316012, at *3–4

(Jan. 30, 2008).

BNSF maintains that Fortt’s questioning of the air-brake

test’s necessity constituted insufficient evidence that

Rookaird ‘refused’ to violate a railroad safety rule or

regulation because it is undisputed that Fortt never explicitly

directed Rookaird to stop the test. But an employee’s refusal

need not be precipitated by an explicit directive in order for

the employee’s refusal to be FRSA-protected activity. The

word “refuse” in the FRSA is a clear reference to the

employee’s conduct, not the employer’s. And while

certainly an explicit order can be ‘refused,’ statements or

conduct of the employer can amount to an implicit order, and

ROOKAIRD V. BNSF RAILWAY CO. 11

an employee can refuse to follow that implicit order just as

much as an explicit one. See Douds v. Milk Drivers & Dairy

Emp. Local No. 680, 133 F. Supp. 336, 340 (D.N.J. 1955)

(“On the other hand, ‘refusal’ connotes an intentional

unwillingness on the part of the employee to do what he is

asked to do. This asking may be by an explicit direct order,

but since ‘actions speak louder than words’ . . . , no

particular form of words is essential.”)

Here, there was sufficient evidence to support the jury’s

finding that Rookaird refused, in good faith, to violate a

railroad safety rule or regulation. Fortt’s statements

questioning the need for the air-brake test came in the middle

of the test. Rookaird responded that the crew was going to

finish the test, and they did so. Fortt was Rookaird’s

supervisor. And the substance of Fortt’s statements – “I’m

not from around here,” “I don’t know how you guys do

anything,” and “from where I’m from, we don’t have to air

test the cars” – are exactly the kind of statements, taken in

context, that a reasonable jury could have found sufficient to

prompt Rookaird to ‘refuse’ to stop the test.

2. Actual Violation

The parties vigorously disputed before the district court

whether Rookaird was legally required to perform the airbrake

test under the circumstances. The district court

ultimately concluded that he was not but described the issue

as a “close call.” The district court went on to hold that the

good-faith requirement in subsection (a) of 49 U.S.C.

§ 20109 required Rookaird to prove that he “must have had

a subjectively and objectively reasonable good faith belief

that the air-brake test was required by federal law or

regulation.” The district court also held that substantial

evidence supported the jury’s finding that it was objectively

12 ROOKAIRD V. BNSF RAILWAY CO.

reasonable for Rookaird to believe that the air-brake test was

required.

On appeal, BNSF argues as a matter of statutory

interpretation that paragraph (a)(2) of 49 U.S.C. § 20109

applies only to conduct that, if undertaken, would actually

violate a rule or regulation, and therefore that Rookaird did

not engage in protected activity because the test was not

legally required. BNSF effectively asks us to add the word

“actually” before “violate” in paragraph (a)(2).

We reject this interpretation of 49 U.S.C. § 20109(a)(2)

as incorrectly narrowing its intended scope. To

constructively add the word “actually” into paragraph (a)(2)

would undercut the good-faith requirement that applies

throughout subsection (a). Congress’s use of the phrase

“good faith” in subsection (a) means that it intended for

paragraph (a)(2) to extend to an employee’s good-faith

refusal to undertake conduct the employee believed to be

violative of a law, rule, or regulation, even if the conduct at

issue would not constitute an actual violation of a law, rule,

or regulation if performed or continued. See Good Faith,

Black’s Law Dictionary (10th ed. 2014) (“A state of mind

consisting in (1) honesty in belief or purpose, [or]

(2) faithfulness to one’s duty or obligation.”).

Rookaird’s case presents a good example of why this

interpretation must be correct. The jury found that Rookaird

had a good-faith belief that the air-brake test was required;

there was disagreement between Rookaird and his

supervisors as to the test’s propriety; the issue was hotly

contested through trial; and the district court only resolved

the issue after acknowledging that it was a “close call.” We

think Congress intended for Rookaird’s good-faith refusal to

be within the scope of paragraph (a)(2), notwithstanding that

the air-brake test turned out to be legally unnecessary.

ROOKAIRD V. BNSF RAILWAY CO. 13

By contrast, limiting paragraph (a)(2) to actual violations

would allow railroads to avoid liability for conduct clearly

intended be covered by paragraph (a)(2). For example, if a

railroad supervisor nefariously orders an employee to

perform an act that the supervisor is sure would violate

federal law, and the employee believes – like the supervisor

– that following the order would require the employee to

violate federal law, the railroad could fire the employee for

insubordination if the employee refused in good faith to

follow that order if it turns out that both the supervisor and

the employee were mistaken. This creates a situation in

which, because of a nuanced technicality that neither the

supervisor nor the employee knew of, the employee’s

noncompliance with the supervisor’s order would not have

been an actual violation of federal law. If paragraph (a)(2)

were construed to cover only actual violations, this

hypothetical employee would have no recourse under

paragraph (a)(2). We cannot imagine that Congress intended

for railroads to escape FRSA liability in such a situation.2

Lower courts’ interpretations of a different paragraph of

subsection (a) support our conclusion. Courts interpreting

paragraph (a)(4) of § 20109 – which prohibits retaliation

2 The dissent argues that this situation is already accounted for by

the text of the statute. Under the dissent’s reading of the statute, the

employee has recourse in such a situation because the act that the

employee undertook was “perceived by the employer” to be a refusal to

violate federal law. But this view misreads the statute. 49 U.S.C.

§ 20109(a) refers to the employee’s “lawful, good faith act done, or

perceived by the employer to have been done or about to be done.” The

phrase “perceived by the employer” gives an employee recourse whether

the employee actually engaged in the act or whether the employer merely

believes the employee engaged in the act. The phrase “perceived by the

employer” does not refer to the employer’s belief about the propriety of

the employee’s act.

14 ROOKAIRD V. BNSF RAILWAY CO.

against employees who “notify . . . the railroad carrier . . . of

a work-related personal injury” – have refused to construe

paragraph (a)(4) to require that the reported injury actually

be work-related. See Thomas v. Union Pac. R.R. Co., 203 F.

Supp. 3d 1111, 1117–18 (D. Or. 2016); Cash v. Norfolk S.

Ry. Co., No. 6:13-CV-00056, 2015 WL 178065, at *11

(W.D. Va. Jan. 14, 2015); Koziara v. BNSF Ry. Co., No. 13-

CV-834-JDP, 2015 WL 137272, at *6 (W.D. Wis. Jan. 9,

2015); Davis v. Union Pac. R.R. Co., No. 5:12-CV-2738,

2014 WL 3499228, at *6–7 (W.D. La. July 14, 2014); Ray

v. Union Pac. R.R. Co., 971 F. Supp. 2d 869, 882–84 (S.D.

Iowa 2013). Rather, those courts require only that the

employee have had, at the time of notification, a good-faith

belief that the injury was work-related: the complainant

must show that “he subjectively believed his reported injury

was work-related;” and that “his belief was objectively

reasonable.” Koziara, 2015 WL 137272, at *6. If the

employee turns out to have been mistaken (i.e., the injury

was not actually work-related), the railroad can still be liable

under paragraph (a)(4), provided that the employee’s

notification was done in good faith. See id. These courts’

refusals to add an actuality requirement to paragraph (a)(4)

in light of subsection (a)’s good-faith requirement support

our conclusion that paragraph (a)(2) should similarly not be

limited.

We are unpersuaded that the presence of the phrase

“reasonably believes” in paragraph (a)(1) and the absence of

that phrase in paragraph (a)(2) – through application of the

canon of expressio unius est exclusio alterius – require that

paragraph (a)(2) be limited to apply only to actual

violations.3 As the Supreme Court has “held repeatedly,”

3 Contrary to BNSF’s suggestions, we do not think the district court

imported the “reasonably believes” language from paragraph (a)(1) into

ROOKAIRD V. BNSF RAILWAY CO. 15

the expressio unius canon “has force only when [listed]

items . . . are members of an ‘associated group or series,’

justifying the inference that items not mentioned were

excluded by deliberate choice, not inadvertence.” Barnhart

v. Peabody Coal Co., 537 U.S. 149, 168 (2003) (quoting

United States v. Vonn, 535 U.S. 55, 65 (2002)); see Plata v.

Schwarzenegger, 603 F.3d 1088, 1095 (9th Cir. 2010). The

phrase “reasonably believes” in paragraph (a)(1) is not part

of an associated group or series, or a statutory listing or

grouping, and so we cannot conclude that its omission from

paragraph (a)(2) was Congress’s deliberate choice.

And even were the canon to apply, the language of

paragraph (a)(7) weighs against adding an actual-violation

requirement into paragraph (a)(2). Paragraph (a)(7) protects

employees who, in good faith, “accurately report hours on

duty.” 49 U.S.C. § 20109(a)(7) (emphasis added).

Presumably then, paragraph (a)(7) does not protect

employees who inaccurately report hours on duty, even if

such a report is made in good faith. That Congress used the

word “accurately” in paragraph (a)(7) – thereby imposing an

additional, accurateness requirement on top of the good-faith

requirement – suggests that Congress did not intend to add

an actual-violation requirement into paragraph (a)(2).

We are similarly unpersuaded by BNSF’s reference to

the Eleventh Circuit’s decision in Koch Foods, Inc. v.

Secretary, U.S. Department of Labor, 712 F.3d 476 (11th

Cir. 2013), which interpreted an anti-retaliation provision of

the Surface Transportation Assistance Act (“STAA”). The

STAA prohibits employers from retaliating against an

paragraph (a)(2); rather, the district court’s subjective-objective

instruction to the jury was about the good-faith requirement of

subsection (a).

16 ROOKAIRD V. BNSF RAILWAY CO.

employee who “refuses to operate a vehicle because . . . the

operation violates a regulation . . . related to commercial

motor vehicle safety.” 49 U.S.C. § 31105(a)(1)(B)(i). Koch

held that 49 U.S.C. § 31105(a)(1)(B)(i) requires “that an

actual violation . . . must occur as a result of the operation of

the vehicle.” 712 F.3d at 481. But the STAA’s antiretaliation

provision lacks the “good faith” requirement

present in § 20109(a)(2). Indeed, Koch relied on the fact that

the relevant portion of the STAA was “unadorned by any

reference to the employee’s belief.” 712 F.3d at 481.4

We affirm the district court’s denial of BNSF’s motion

for judgment as a matter of law on the protected-activity

element of Rookaird’s claim.

B. Contributing Factor

BNSF also appeals the district court’s grant of summary

judgment to Rookaird on the contributing-factor element of

his FRSA retaliation claim. We review de novo a district

court’s grant of summary judgment. S & H Packing & Sales

Co. v. Tanimura Distrib., Inc., 883 F.3d 797, 801 (9th Cir.

2018). Summary judgment is appropriate when “there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ.

P. 56(a). We must view the evidence in the light most

favorable to the nonmoving party and draw all reasonable

inference in the nonmoving party’s favor. Easley v. City of

Riverside, 890 F.3d 851, 856 (9th Cir. 2018). “Where the

4 To be clear, we do not hold that whether an actual violation would

have occurred is irrelevant to a railroad’s liability under § 20109(a)(2).

Such evidence might be probative of the employee’s good faith but could

also be unfairly prejudicial or overly confusing. See Fed. R. Evid. 401–

403. We leave it to district courts to decide such evidentiary questions

in the ordinary course of trial and pretrial proceedings.

ROOKAIRD V. BNSF RAILWAY CO. 17

moving party will have the burden of proof on an issue at

trial, the movant must affirmatively demonstrate that no

reasonable trier of fact could find other than for the moving

party.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978,

984 (9th Cir. 2007).

BNSF argues that the district court erred in granting

Rookaird summary judgment. We generally agree. The

district court conflated Rookaird’s prima facie showing,

which he successfully made as a matter of law, with his

substantive case, which should have gone to the jury.

Accordingly, we reverse the district court’s grant of

summary judgment to Rookaird on the contributing-factor

issue.

1. The FRSA

We begin by clarifying the structure of the relevant

portion of the FRSA. A claim for unlawful retaliation under

the FRSA has two stages: the prima facie stage, see

49 U.S.C. § 42121(b)(2)(B)(i)–(ii); 29 C.F.R. § 1982.104(e),

and the substantive stage, see 49 U.S.C. § 42121(b)(2)(B)(iii)–

(iv); 29 C.F.R. § 1982.109(a)–(b). Each stage has its own

burden-shifting framework.

At the prima facie stage, a complainant must make “a

prima facie showing that any [protected activity] was a

contributing factor in the unfavorable personnel action

alleged in the complaint.” 49 U.S.C. § 42121(b)(2)(B)(i). A

complainant’s prima facie showing has four elements:

[1] The employee engaged in a protected

activity (or . . . was perceived to have

engaged or to be about to engage in protected

activity);

18 ROOKAIRD V. BNSF RAILWAY CO.

[2] The respondent knew or suspected that

the employee engaged in the protected

activity (or . . . perceived the employee to

have engaged or to be about to engage in

protected activity);

[3] The employee suffered an adverse action;

and

[4] The circumstances were sufficient to raise

the inference that the protected activity (or

perception thereof) was a contributing factor

in the adverse action.

29 C.F.R. § 1982.104(e)(2) (emphasis added). “Notwithstanding

a finding . . . that the complainant has made [a prima facie]

showing,” the employer can defeat a claim “if the employer

demonstrates, by clear and convincing evidence, that the

employer would have taken the same unfavorable personnel

action in the absence of [the protected activity].” 49 U.S.C.

§ 42121(b)(2)(B)(ii); see 29 C.F.R. § 1982.104(e)(4). In

administrative proceedings, if an FRSA complainant

prevails at the prima facie stage, then OSHA will investigate

the claim. 49 U.S.C. § 42121(b)(2)(A); 29 C.F.R.

§ 1982.104(e)(5).

At the substantive stage, a violation will be found “only

if the complainant demonstrates that any [protected activity]

was a contributing factor in the unfavorable personnel action

alleged in the complaint.” 49 U.S.C. § 42121(b)(2)(B)(iii)

(emphasis added); see 29 C.F.R. § 1982.109(a). The

complainant must prove the substantive case by a

preponderance of the evidence. 29 C.F.R. § 1982.109(a).

Then – like at the prima facie stage – the employer can defeat

the retaliation claim “if the employer demonstrates by clear

ROOKAIRD V. BNSF RAILWAY CO. 19

and convincing evidence that the employer would have taken

the same unfavorable personnel action in the absence of [the

protected activity].” 49 U.S.C. § 42121(b)(2)(B)(iv); see

29 C.F.R. § 1982.109(b).

These two stages are distinct. The prima facie stage is

governed by clauses (i) and (ii) of 49 U.S.C.

§ 42121(b)(2)(B) and by 29 C.F.R. § 1982.104; the

substantive stage is governed by clauses (iii) and (iv) of

49 U.S.C. § 42121(b)(2)(B) and by 29 C.F.R. §§ 1982.109,

1982.110. Although the employer has the same burden in

each stage, the complainant does not. At the prima facie

stage, the complainant need only make a prima facie

showing that the protected activity was a contributing factor

in the unfavorable personnel action, which includes as an

element that “[t]he circumstances were sufficient to raise the

inference that the protected activity (or perception thereof)

was a contributing factor in the adverse action.” 29 C.F.R.

§ 1982.104(e)(2)(iv) (emphasis added). But at the

substantive stage, the complainant must prove by a

preponderance of the evidence that the protected activity

“was a contributing factor” in the adverse action. 49 U.S.C.

§ 42121(b)(2)(B)(iii) (emphasis added); see 29 C.F.R.

§ 1982.109(a). Showing that the circumstances are

sufficient to raise the inference of x is a lower bar than

proving x by a preponderance of the evidence.

We are not the first to point this out. In 2006, the

Administrative Review Board of the Department of Labor

similarly explained the structure of the FRSA. In Brune v.

Horizon Air Industries, Inc., ARB No. 04-037, 2006 WL

282113, at *7 (Jan. 31, 2006), the Board discussed clauses

(i) through (iv) of 49 U.S.C. § 42121(b)(2)(B). The Board

explained that clauses (i) and (ii) govern the “investigation”

stage (what we call the prima facie stage) and that clauses

20 ROOKAIRD V. BNSF RAILWAY CO.

(iii) and (iv) govern the “hearing” or “adjudication” stage

(what we call the substantive stage). Id. at *7–8. The Board

in Brune correctly noted the differing standards at each

stage:

The distinction, then, between standards

applied for purposes of investigation and

adjudication of a complaint concerns the

complainant’s burden. To secure an

investigation, a complainant merely must

raise an inference of unlawful discrimination,

i.e., establish a prima facie case. To prevail in

an adjudication, a complainant must prove

unlawful discrimination.

Id. at *8.

2. Summary Judgment of Contributing Factor

The district court erred by conflating the two stages

through which an FRSA retaliation claim proceeds, i.e.,

Rookaird’s prima facie showing with his substantive case.

In its summary-judgment order, the district court found that

Rookaird’s alleged inefficiency “cannot be unwound from”

his decision to perform the air-brake test and therefore

granted Rookaird summary judgment on “the ‘contributing

factor’ element of his prima facie case.”5 At trial, however,

the district court instructed the jury that the contributing-

5 In its summary-judgment order, the district court referenced

clauses (i) and (ii) of 49 U.S.C. § 42121(b)(2)(B), but those clauses

govern only the prima facie stage; clauses (iii) and (iv) govern the

substantive stage. Similarly, to the extent that the district court relied on

Kuduk v. BNSF Ry. Co., 768 F.3d 786 (8th Cir. 2014), that reliance was

misplaced because Kuduk involved the prima facie stage; Kuduk did not

involve the substantive stage. Id. at 789–90.

ROOKAIRD V. BNSF RAILWAY CO. 21

factor element was not in dispute, and that to prevail on the

merits, Rookaird only needed to prove that his refusal to stop

the air-brake test constituted FRSA-protected activity. Thus,

although the district court’s summary-judgment order

purported to rule only on an element of Rookaird’s prima

facie showing, the order’s effect was to grant Rookaird

summary judgment on an element of his substantive case.

This was improper. As explained, a complainant’s burden is

lower at the prima facie stage than at the substantive stage.

A complainant who prevails at the prima facie stage likely

can avoid the employer’s summary-judgment motion

because a prima facie showing includes evidence that “the

circumstances were sufficient to raise the inference that the

protected activity . . . was a contributing factor,” 29 C.F.R.

§ 1982.104(e)(2)(iv), and reasonable inferences would be

drawn in the employee’s favor on an employer’s motion for

summary judgment, Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 253–54 (1986). But a successful prima facie

showing does not entitle a complainant to summary

judgment on the substantive case.

Because the district court improperly conflated

Rookaird’s prima facie showing with his substantive case,

we must determine whether Rookaird was entitled to

summary judgment on the contributing-factor element of his

prima facie showing and, if so, whether he was entitled to

summary judgment on his substantive case also.

“A ‘contributing factor’ includes ‘any factor, which

alone or in connection with other factors, tends to affect in

any way the outcome of the decision.’” Gunderson v. BNSF

Ry. Co., 850 F.3d 962, 969 (8th Cir. 2017) (quoting Kuduk

v. BNSF Ry. Co., 768 F.3d 786, 791 (8th Cir. 2014)); Allen

v. Admin. Review Bd., 514 F.3d 468, 476 n.3 (5th Cir. 2008).

“[T]he contributing factor that an employee must prove is

22 ROOKAIRD V. BNSF RAILWAY CO.

intentional retaliation prompted by the employee engaging

in protected activity.” Kuduk, 768 F.3d at 791. The

employee’s prima facie showing “does not require that the

employee conclusively demonstrate the employer’s

retaliatory motive.” Coppinger-Martin v. Solis, 627 F.3d

745, 750 (9th Cir. 2010); see also Armstrong v. BNSF Ry.

Co., 880 F.3d 377, 382 (7th Cir. 2018).

We hold that Rookaird was entitled to summary

judgment on the contributing-factor element of his prima

facie showing, but that he was not entitled to summary

judgment on his substantive case.6

a. Rookaird’s Prima Facie Showing

As to Rookaird’s prima facie showing, there was no

genuine dispute of material fact that the circumstances were

sufficient to raise the inference that the air-brake test was a

contributing factor in Rookaird’s termination. See 29 C.F.R.

§ 1982.104(e)(2)(iv). Rookaird was fired in part for being

inefficient – for taking too long, in BNSF’s view, to

complete his assigned tasks during his shift. Rookaird

performed what BNSF believed to be an unnecessary airbrake

test on that very shift. Fortt questioned the air-brake

test’s necessity in the middle of it, Rookaird’s crew said they

were going to finish it, Rookaird was relieved from duty

6 Given our clarification of the differences between the prima facie

stage and the substantive stage of an FRSA retaliation claim, it is unclear

what the benefit will be for future plaintiffs in obtaining summary

judgment of a prima facie showing, given that plaintiffs must still prove

their substantive case at trial by a preponderance of the evidence.

Nevertheless, Rookaird moved for summary judgment on his prima facie

showing, and the district court’s decision on that motion is properly

before us.

ROOKAIRD V. BNSF RAILWAY CO. 23

shortly after performing the test, and Gordon questioned him

about the test back at the Swift Depot. The close temporal

proximity of the crew being relieved to the air-brake test and

the crew’s post-relief questioning by Gordon about the test

further supports the inference that Rookaird’s firing was

motivated in part by his refusal to stop the air-brake test.

29 C.F.R. § 1982.104(e)(3). Rookaird successfully made his

prima facie showing notwithstanding BNSF’s evidence to

the contrary.7

b. Rookaird’s Substantive Case

As to Rookaird’s substantive case, however, there

remained a genuine dispute of material fact as to whether the

air-brake test was a contributing factor in Rookaird’s

termination. See 49 U.S.C. § 42121(b)(2)(B)(iii); 29 C.F.R.

§ 1982.109(a). BNSF presented evidence that, if credited,

could lead a reasonable jury to find that Rookaird’s refusal

to stop the air-brake test did not contribute to BNSF’s

decision to terminate him. For example, Fortt and Gordon

each testified that the air-brake test did not factor into the

decision to fire Rookaird. Doug Jones, the general manager

of BNSF’s Northwest Division who made the decision to fire

Rookaird, also testified that the air-brake test did not factor

into his decision. BNSF also presented evidence that

Rookaird was fired for reasons unrelated to the air-brake test,

7 In deciding Rookaird’s motion for summary judgment, it is unclear

whether the district court considered BNSF’s evidence, including its

purportedly nonretaliatory reasons for Rookaird’s termination.

Generally, an employer’s evidence and nonretaliatory reasons should be

considered in evaluating whether an FRSA complainant has made a

prima facie showing. See Koziara v. BNSF Ry. Co., 840 F.3d 873, 879

(7th Cir. 2016) (considering employer’s evidence), cert. denied, 137 S.

Ct. 1449 (2017); Kuduk, 768 F.3d at 790 (same); Powers v. Union Pac.

R.R. Co., ARB No. 13-034, 2017 WL 262014, at *8–10 (Jan. 6, 2017).

24 ROOKAIRD V. BNSF RAILWAY CO.

including his failure to provide a signed time slip, his refusal

to leave BNSF property when instructed, and his inaccurate

reporting of his off-duty time. Viewing that evidence in the

light most favorable to BNSF, a reasonable jury could find

that Rookaird’s refusal to stop the air-brake test did not

contribute to BNSF’s decision to terminate him. Rookaird

was therefore not entitled to summary judgment on his

substantive case. The jury should have determined whether

Rookaird proved by a preponderance of the evidence that his

refusal to stop performing the air-brake test was a

contributing factor in his termination. And because no other

theory of liability can independently support the verdict, the

district court’s judgment must be vacated. See Traver v.

Meshriy, 627 F.2d 934, 938 (9th Cir. 1980).8

III. Conclusion

We affirm the district court’s denial of judgment as a

matter of law to BNSF on the protected-activity issue. We

reverse the district court’s grant of summary judgment to

Rookaird on the contributing-factor issue. Accordingly, we

vacate the district court’s judgment and remand for further

proceedings consistent with this opinion. Because

Rookaird’s cross-appeal relates entirely to damages,

Rookaird’s cross-appeal is dismissed as moot. See

McClellan v. I-Flow Corp., 776 F.3d 1035, 1041 (9th Cir.

2015).

8 BNSF argues that it is entitled to a new trial on all issues. We

express no view on whether the improper grant of summary judgment to

Rookaird on his substantive case justifies a new trial on other issues, such

as BNSF’s affirmative defense or damages. We leave it to the district

court on remand to decide whether a new trial on other issues is

warranted in light of our decision.

ROOKAIRD V. BNSF RAILWAY CO. 25

Each party shall bear its own costs.

AFFIRMED in part, REVERSED in part,

VACATED, and REMANDED. Plaintiff-Appellant

Curtis Rookaird’s cross-appeal is DISMISSED as moot.

IKUTA, Circuit Judge, dissenting in part:

Once again, our court tries to give Congress a helping

hand by substituting its own policy judgment for the plain

language of a statute. According to the majority, Congress’s

decision to put a “reasonable belief” element into one

subsection of a statute and not into another subsection was a

mere scrivener’s error that we can and should fix judicially.

“But policy arguments cannot supersede the clear statutory

text.” Universal Health Servs., Inc. v. United States, 136 S.

Ct. 1989, 2002 (2016). Because we should apply the

statutory language as Congress enacted it, I dissent from Part

II.A of the majority opinion.

I

“Statutory interpretation begins with the plain language

of the statute. If the text of the statute is clear, this court looks

no further in determining the statute’s meaning.” K & N

Eng’g, Inc. v. Bulat, 510 F.3d 1079, 1081 (9th Cir. 2007)

(quoting United States v. Mendoza, 244 F.3d 1037, 1042 (9th

Cir. 2001) (internal citations omitted)). Here, we need look

no further than the text of the Federal Rail Safety Act

(FRSA), 49 U.S.C. § 20109(a), which states, in pertinent

part:

(a) In general.—A railroad carrier engaged in

interstate or foreign commerce, a contractor

26 ROOKAIRD V. BNSF RAILWAY CO.

or a subcontractor of such a railroad carrier,

or an officer or employee of such a railroad

carrier, may not discharge, demote, suspend,

reprimand, or in any other way discriminate

against an employee if such discrimination is

due, in whole or in part, to the employee’s

[i] lawful, [ii] good faith act [iii] done, or

perceived by the employer to have been done

or about to be done—

(1) to provide information, directly cause

information to be provided, or otherwise

directly assist in any investigation

regarding any conduct which the

employee reasonably believes constitutes

a violation of any Federal law, rule, or

regulation relating to railroad safety or

security, or gross fraud, waste, or abuse

of Federal grants or other public funds

intended to be used for railroad safety or

security, if the information or assistance

is provided to or an investigation

stemming from the provided information

is conducted by—[various agencies or

individuals];

(2) to refuse to violate or assist in the

violation of any Federal law, rule, or

regulation relating to railroad safety or

security;

(3) to file a complaint, or directly cause to

be brought a proceeding related to the

enforcement of this part or, as applicable

to railroad safety or security, chapter 51

ROOKAIRD V. BNSF RAILWAY CO. 27

or 57 of this title, or to testify in that

proceeding;

(4) to notify, or attempt to notify, the

railroad carrier or the Secretary of

Transportation of a work-related personal

injury or work-related illness of an

employee;

(5) to cooperate with a safety or security

investigation by the Secretary of

Transportation, the Secretary of

Homeland Security, or the National

Transportation Safety Board;

(6) to furnish information to the Secretary

of Transportation, the Secretary of

Homeland Security, the National

Transportation Safety Board, or any

Federal, State, or local regulatory or law

enforcement agency as to the facts

relating to any accident or incident

resulting in injury or death to an

individual or damage to property

occurring in connection with railroad

transportation; or

(7) to accurately report hours on duty

pursuant to chapter 211.

49 U.S.C. § 20109(a).

Under § 20109(a), an employer may not discriminate

against an employee based on an act by the employee that is:

(i) lawful; (ii) in good faith; and (iii) done or perceived by

28 ROOKAIRD V. BNSF RAILWAY CO.

the employer to have been done in order to accomplish one

of the particular actions specified in subsections (a)(1)

through (7). Subsection (a)(2) (the basis for Curtis

Rookaird’s complaint) specifies the following action: “to

refuse to violate . . . any Federal law, rule, or regulation.”

§ 20109(a)(2).

Rookaird claims he was fired in retaliation for refusing

to violate a federal rule requiring the performance of an airbrake

test. Accordingly, to prevail on his complaint,

Rookaird must show that his performance of the air-brake

test was (i) lawful, (ii) in good faith, and (iii) done (or

perceived by BNSF to have been done) to refuse to violate

federal law. See id. But Rookaird cannot satisfy the third

prong of this test. The district court determined that federal

law did not require Rookaird to perform an air-brake test on

the train, and Rookaird presented no evidence regarding

BNSF’s perception of what federal law required. Because

Rookaird did not “refuse to violate . . . any Federal law,” his

claim fails as a matter of law. See id.

II

In reaching the contrary conclusion, the majority

rewrites the statutory language. The majority asserts that

because the statute refers to an employee’s “lawful, good

faith act,” § 20109(a), employees should be able to prove

they engaged in the conduct listed in subsection (a)(2) (i.e.,

refusal “to violate . . . any Federal law”) merely by showing

they had a good faith belief that they were doing so. Maj. at

12. In effect, the majority asserts that we must read

subsection (a)(2) as referring to an employee’s “lawful, good

faith act done . . . to refuse [to take an action that in the

reasonable belief of the employee would] violate . . . any

Federal law.”

ROOKAIRD V. BNSF RAILWAY CO. 29

The majority offers many justifications for this extratextual

interpretation, but none of them have merit. First, the

majority claims that giving effect to the statute as written

would “incorrectly narrow[] its intended scope.” Maj. at 12.

According to the majority, had Congress intended the

particular conduct listed in § 20109(a)(2) to be a refusal to

“violate . . . any Federal law,” it would have inserted the

word “actually” before the word “violate.” Maj. at 12. By

failing to add the word “actually,” the majority claims,

Congress established that it did not intend to refer to an

actual violation of federal law. Maj. at 12. This is

nonsensical on its face. Congress does not have to insert the

words “actually” or “literally” or say “and we really mean

it” in order for statutory language to mean what it says.

The majority next claims that its rewriting of the statute

to insert “to take an action that in the reasonable belief of the

employee would” between “to refuse” and “to violate . . .

any Federal law” in (a)(2) must be correct for policy reasons.

Absent the added language, the majority asserts, an

employer could “nefariously order[] an employee to perform

an act” that the employer and employee both believe would

violate federal law, fire the employee for refusing to follow

the order, and then escape liability if it turns out that the act

did not violate federal law due to some technicality. Maj. at

13. But the text of the statute addresses that exact situation

without the majority’s help. Under subsection (a), FRSA is

violated if the employee takes an act that is “perceived by

the employer to have been done . . . to refuse to violate . . .

Federal law.” In the majority’s hypothetical, the employer

would be liable because, even though no actual violation

30 ROOKAIRD V. BNSF RAILWAY CO.

occurred, the railroad fired the employee for a “perceived”

refusal to violate federal law. See 49 U.S.C. § 20109(a)(2).1

Nor do the majority’s references to § 20109(a)(4) and

(a)(7) support its interjection of new language into the

statutory text. Maj. at 13–14, 15. The majority notes that

district courts have read § 20109(a)(4) (covering employees

who notify employers of work-related injuries or illnesses)

as applying regardless whether the injury or illness is workrelated.

Maj. at 13–14. But we should consider district

courts’ interpretations of statutes only to the extent they are

persuasive; district courts’ refusal to give effect to the

statutory language based on policy preferences is not.

Similarly, the fact that Congress used the word “accurately”

in § 20109(a)(7) (covering employees who “accurately

report hours on duty”), Maj. at 15, does not support (or even

logically relate to) the majority’s conclusion that it must

rewrite subsection (a)(2).

Finally, the majority’s theory that Congress’s use of the

phrase “good faith” in subsection (a) requires us to read a

“reasonable belief” element into subsection (a)(2), Maj.

at 12, is inconsistent with the statute as a whole. First,

subsection (a)(1) already includes a “reasonable belief”

element: it prohibits discrimination when an “employee’s

1 In a footnote, the majority argues that “this view misreads the

statute,” because “[t]he phrase ‘perceived by the employer’ gives an

employee recourse whether the employee actually engaged in the act or

whether the employer merely believes the employee engaged in the act.”

Maj. at 13 n.2. The majority’s reading of the statute is correct —except

that the majority misses the point that the “act” at issue is the refusal “to

violate . . . Federal law.” § 20109(a)(2). An employee has no recourse

under the statute if the employee refused to engage in a perfectly lawful

act, unless the employer believes the employee refused “to violate . . .

Federal law.” Id.

ROOKAIRD V. BNSF RAILWAY CO. 31

lawful, good faith act” was done “to provide information . . .

regarding any conduct which the employee reasonably

believes constitutes a violation.” 49 U.S.C. § 20109(a)(1)

(emphasis added). Congress’s use of “reasonably believes”

in (a)(1) but not in (a)(2) raises the presumption that

Congress did not intend to import a reasonable belief

component into the refusal “to violate . . . Federal law.”

§ 20109(a)(2). “[W]hen Congress includes particular

language in one section of a statute but omits it in another[,]

. . . this Court presumes that Congress intended a difference

in meaning.” Dig. Realty Tr., Inc. v. Somers, 138 S. Ct. 767,

777 (2018) (quoting Loughrin v. United States, 134 S. Ct.

2384, 2390 (2014)).

The majority rejects this well-established principle of

interpretation on the ground that the phrase “reasonably

believes” is “not part of an associated group or series, or a

statutory listing or grouping.” Maj. at 15. This is a

misunderstanding of how the interpretive canon applies here.

Subsections (a)(1) through (a)(7) are part of an “associated

group or series” because each subsection enumerates

purposes for which an employee might undertake the

“lawful, good faith act” described in § 20109(a). See

Barnhart v. Peabody Coal Co., 537 U.S. 149, 168 (2003).

Accordingly, it is justified to infer that the exclusion of

“reasonably believes” from subsection (a)(2) but not from

subsection (a)(1) was “by deliberate choice, not

inadvertence.” Id.

Contrary to the majority, therefore, there is no basis for

concluding that Congress merely slipped up when it omitted

the “reasonable belief” element from subsection (a)(2).

Rather, recognizing the complexity of railroad regulation,

Congress could have reasonably concluded that an employer

is better positioned to know the law than the employee.

32 ROOKAIRD V. BNSF RAILWAY CO.

Therefore, Congress could have intended “to provide broader protections for employees who complain about perceived but nonexistent safety violations — as it has, for example, in Title VII and other statutes protecting employees from discrimination in the workplace — and narrower protections for employees whose refusals to” work might “significantly impede” railroad operations. See Koch Foods, Inc. v. Sec’y, U.S. Dep’t of Labor, 712 F.3d 476, 483 (11th Cir. 2013).

Conversely, because subsections (a)(1) through (a)(7) are an associated list of actions, if we are obliged to read the phrase “good faith” in the introductory section into subsection (a)(2), as the majority claims, we must also read it into subsections (a)(1) and (a)(3) to (7); there is no principled basis to do otherwise. But this would render the “reasonable belief” element in subsection (a)(1) superfluous, and courts are reluctant to adopt a reading that would “treat statutory terms as surplusage.’” Bd. of Trs. of Leland Stanford Junior Univ. v. Roche Molecular Sys., Inc., 563 U.S. 776, 788 (2011) (quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)).

In sum, there is no basis for refusing to give effect to the plain language of the statute. Because federal law did not require the performance of an air-brake test, the district court erred in concluding that Rookaird could establish that he refused “to violate . . . any Federal law,” § 20109(a)(2), and therefore erred in denying BNSF’s motion for judgment as a matter of law on the protected activity element. Accordingly, I respectfully dissent from Part II.A of the majority opinion.

We affirm the district court’s denial of judgment as a

matter of law to BNSF on the protected-activity issue. We

reverse the district court’s grant of summary judgment to

Rookaird on the contributing-factor issue. Accordingly, we

vacate the district court’s judgment and remand for further

proceedings consistent with this opinion. Because

Rookaird’s cross-appeal relates entirely to damages,

Rookaird’s cross-appeal is dismissed as moot. See

McClellan v. I-Flow Corp., 776 F.3d 1035, 1041 (9th Cir.

2015).